Employment Based

One method of obtaining lawful permanent residency in the U.S. is through employment by a US based employer.

Employment Based Immigration

There are six preference categories of employment-based immigration:

First Preference

The first employment based immigration preference category covers “priority workers.” These are workers whose skills and talents are important to the US –– the “best and brightest.” The annual cap on EB-1 visas is 40,000, plus any visas left over from the fourth and fifth employment based preference categories (special immigrants and immigrant investors). This is more visas than are ordinarily used in the category, so there are no backlogs in visa issuance in this category. The EB-1 category covers 3 groups:

Aliens of extraordinary ability;

Outstanding professors and researchers; and

Multi-national executives and managers.

One of the most attractive aspects of the EB-1 category is that the labor certification requirement does not apply. This makes the time spent processing an EB-1 application much shorter than for categories that do require a labor certification.

This subcategory covers aliens possessing extraordinary ability in the sciences, arts, education, business or athletics. The extraordinary ability subcategory does not require a specific job offer, so long as the alien states that they will continue to work in the field of their extraordinary ability in the US. This means that the alien may file a petition on their own behalf, rather than having an employer file for them.

Extraordinary ability is a relatively new concept in immigration law, being introduced only in 1990. USCIS regulations define extraordinary ability as a “level of expertise indicating that the individual is one of those few who have risen to the top of the field of endeavor.”

There are two ways to demonstrate extraordinary ability. First, the alien can show that they have received a major, internationally recognized award such as a Nobel Prize or an Academy Award.

The second, and more common method is for the alien to show at least 3 of the following 10 types of evidence:

Receipt of lesser national or international prizes or awards for excellence in their field of endeavor;

Membership in associations in the field of endeavor that require outstanding achievements of their members;

Published material about the alien and his or her work in professional journals, trade publications, or the major media;

Participation, either in a group or alone, as a judge of others in the same or a similar field;

Original scientific, scholarly, or artistic contributions of major significance in the field of endeavor;

Authorship of scholarly articles in the field, published in professional journals or the major media;

Display of the alien’s work at artistic exhibitions or showcases in more than one country;

Performance in a lead, starring, or critical role for organizations with a distinguished reputation;

Commanding a high salary compared to others in the field; or

Commercial success in the performing arts, as shown by box office receipts and sales.

Realizing that these 10 categories of evidence do not encompass all the evidence that could be presented to show extraordinary ability, the USCIS has also included a catch-all category allowing submission of other comparable evidence.

While the USCIS rules set up a 3 out of 10 requirement with regard to the above categories of evidence, subsequent policy statements have made the rule less clear. For example, when publication of scholarly articles is standard in the field of endeavor, the USCIS often will not accept it as one of the three types of evidence and will demand additional evidence. However, in this case, instead of presenting additional evidence the alien can counter by showing that the publications were in the most prestigious journals in the field, have been peer reviewed in other publications, or have been cited extensively by others in the field.

While not an official category of evidence, another way to demonstrate extraordinary ability is through comparison with an alien already granted that status. This is possible because the USCIS regulations make comparison with others in the field one of the standards for judging extraordinary ability. Therefore, while it may be difficult to find out how the USCIS has treated someone with similar credentials, it is highly relevant evidence.

One final word of caution should be made of the type of evidence submitted to the USCIS. Many types of evidence, while it may technically fit within USCIS regulations, are not accorded much weight. For example, publication by a vanity press, a simple citation to the alien’s work without evaluation, or a single listing in an index are not accorded much weight.

Other types of evidence are considered highly persuasive, such as publication in peer-reviewed journals. Finally, some of the most persuasive types of evidence are letters from peers in the alien’s field attesting to the alien’s important contributions and ability.

Outstanding Professors and Researchers

The evidentiary requirements for this category are as follows:

International recognition as outstanding in a specific academic field; or

At least three years teaching or research in the field. The teaching or research experience can be gained while in pursuit of an advanced degree, but only if the alien had full responsibility for the courses taught, or the research is recognized as outstanding.

An offer of employment. There are three forms this offer can take:

A tenure or tenure-track teaching position or a comparable research position;

A research position with no fixed term in a position where the employee would generally have the expectation of permanent employment; or

A research position with a private company if the employer has at least three full time researchers and has documented research accomplishments in the field.

Unlike aliens in the extraordinary ability subcategory, aliens in the outstanding professor or researcher subcategory must have a job offer. However, as with all first preference employment petitions, no labor certification is required.

An alien demonstrates that their work has been recognized as outstanding in the international arena by presenting evidence similar to that required to show extraordinary ability. Two of the following types of evidence are required:

Receipt of a major international prize or award for outstanding achievement in the academic field;

Membership in associations that require outstanding achievements of their members;

Material in professional publications written by others about the alien’s work;

Participation as a judge of the work of others in the field;

Original contributions in the field; or

Authorship of scholarly books or articles in journals with international circulation.

There, of course, are types of evidence that are more useful than others. A book published by a vanity press will not be given much weight, nor will mentions of the alien’s work without evaluation.

Strong evidence includes peer-reviewed publications and participation as a peer-reviewer. As always, one of the strongest types of evidence is the submission of letters from academic peers. Also, the alien must submit letters from past employers documenting at least three years of teaching or research experience.

Qualifying Employment Offer

Along with the petition, the potential employer must submit a letter outlining the employment offer. The letter must include the basic terms of employment, including the salary offered. More difficult is describing the position. If the position offered is a tenured position, or a tenure-track position, then it is simple. However, few research positions are tenured.

Qualifying research positions, therefore, can include positions that do not have a fixed duration but are the sort of position in which the alien can expect permanent employment.

Private employers face additional requirements. The employer must show that they employ three full-time researchers and that research conducted by the employer has resulted in documented accomplishments.

USCIS rules provide no information on how a private employer can document research accomplishments. The best evidence possible should be submitted, which would include any patents issued to researchers at the institution, and articles published by employees.

Multi-national Executives and Managers

This subcategory is reserved for multi-national executives and managers. Because there is seldom a waiting period for the priority date to become current, this allows for the easy transfer of executives, and has been of tremendous assistance for international businesses. While the petition must be filed by an employer, no labor certification is required.

To immigrate on a permanent basis as a multi-national executive or manager, the alien must have worked for the petitioner for at least one year of the previous three. This does not need to have been completed in one stretch, but can be aggregated.

The alien’s work must be in an executive or managerial capacity. Also, the alien must also be coming to the US to work in that same executive or managerial capacity.

If the alien is already in the US, the required one year of employment in the past three will be determined by looking at the three years prior to the alien’s transfer to the US. The US business must have been established for at least one year before filing the petition.

Executive Capacity

For an alien to be considered an executive, the job must meet the following requirements:

Manage an organization or major component;

Have authority to establish goals and policies;

Have discretionary decision-making authority; and

Be subject to only general supervision from higher level executives, the board of directors, or stockholders.

The overall size of the organization is a factor in determining executive capacity. The larger the organization, the more reasonable it will be seen to require the international transfer.

Managerial Capacity

For an alien to be considered a manager, the job must meet the following requirements:

Manage an organization or department;

Supervise and control other managers or professional level personnel;

Authority to make personnel decisions; and

Have discretion to make decisions about operations.

As with executives, the size of the business is an important factor. If this category sounds familiar, it is because it is very similar to the L-1 nonimmigrant category. There are a few differences. EB-1’s are only available to managers and executives, and not to specialized knowledge workers.

Also, unlike L-1’s, the U.S. branch of the business must have been in operation for one year before petitioning for an immigrant worker.

Second Preference

The second preference category of employment-based immigration includes aliens of exceptional ability and aliens holding advanced degrees in professional fields. Each year the second preference category is allotted about 40,000 immigrant visas, including any not used in the first preference.

Generally, there are a sufficient number of visas and there is no backlog. However, backlogs do exist in this category for Indian and Chinese nationals. There is no distinction in the allocation of visas between the two second preference subcategories.

As a general rule, a labor certification is required, although in some cases a National Interest Waiver (NIW) is available.

Aliens of Exceptional Ability

The key to demonstrating exceptional ability is to show that the applicant possesses a level of expertise above that which would normally be encountered in the field. Exceptional ability is limited to aliens in the fields of arts, science and business. After some debate, it now seems clear that for purposes of this category, athletics are to be considered an art. In making the application, the USCIS requires at least 3 of the following 6 types of evidence:

Official record of a degree from a college, university or other learning institution related to the field in which the alien claims exceptional ability;

Evidence of 10 years of full time experience in the field in which employment is sought (typically in the form of letters from past employers);

A license to practice or certification;

Evidence of a high salary or other form of payment that indicates exceptional ability;

Evidence of membership in professional associations; and

Evidence of recognition by peers or professional associations for achievements and contributions to the field.

The USCIS defines a profession as an occupation in which a baccalaureate degree is the minimum requirement for entry. An advanced degree is any academic or professional degree above the level of a bachelor’s degree.

The Immigration and Nationality Act allows for the substitution of 5 years progressive experience in the field in addition to the baccalaureate degree to substitute for the advanced degree. This rule has recently been the subject of some litigation, and the USCIS has tried to respond by following more closely to the law as written.

Along with the results of the labor certification, the application should include evidence of the alien’s educational credentials. The application also requires proof that the US Department of Labor has certified that there are no available US workers for the position –– the labor certification. The requirements for a labor certification are quite detailed, and are covered on this website under PERM Rules.

National Interest Waivers

An alien may apply for permanent residence status and seek a waiver of the offer of employment and the Labor Certification by establishing that his or her admission to the U.S. on a permanent basis would be in the National Interest.

A National Interest Waiver (NIW) is quite complex because there is no rule or statutory standard as to what will qualify an alien for a National Interest Waiver.

The USCIS considers each application for a National Interest Waiver on a case by case basis.

Who qualifies?

Factors that the USCIS considers in these types of applications include:

The alien’s admission will improve the U.S. economy;

The alien’s admission will improve wages and working conditions of U.S. workers;

The alien’s admission will improve educational and training programs for U.S. children and underqualified workers;

The alien’s admission will provide more affordable housing for young, aged, or poor U.S. residents;

The alien’s admission will improve the U.S. environment and lead to more productive use of the national resources; or

The alien’s admission is requested by an interested U.S. government agency.

Based on our experience, the USCIS has approved these types of applications when they were supported by affidavits from well-known, established and influential people or organizations.

For example, an application being submitted for a scientist should contain affidavits from leading scientists, representatives, and from other organizations associated with the type of research to be pursued.

Documenting past achievements, as well as proof that the alien has already created jobs, has turned around a business, or created an increase in exports or other economic improvements would increase the chances of the USCIS granting this type of a waiver.

Third Preference

The third preference category of employment-based immigration is for aliens who possess a baccalaureate or who are skilled workers.

The requirements for this preference category are the following:

The alien must be offered a full-time, permanent position in the U.S.;

The Department of Labor must certify that there are no available U.S. workers; and

The alien must meet the minimum requirements for the position offered and the employer must be able to pay the salary offered.

All applications filed in this preference category require a job offer and an approved labor certification (the labor certification process is discussed in depth under PERM Rules).

Professionals who hold a Baccalaureate Degree

This category is available only to aliens who hold a US baccalaureate degree or its foreign equivalent. Unlike the H-1B nonimmigrant category, an alien cannot substitute a lack of education with work experience.

A profession is a field of work which requires at a minimum a baccalaureate degree to perform the job duties.

Skilled Workers

For an alien to qualify as a skilled worker, the position offered must require at least two years of experience. The alien must possess the requisite background, but simply because the alien has two years of experience, does not make it a skilled position if the position does not otherwise require two years of experience.

Under USCIS regulations, whether a position involves skilled labor is determined by reference to the Department of Labor approved labor certification.

It is vitally important that the employer demonstrate to the Department of Labor and the USCIS that the position does in fact require at least two years of experience. The primary issues that occur here result from conflict between the employer’s belief that the position does require two years of experience and the Department of Labor’s guidelines on specific vocational preparation that show the position requires less. Therefore, this issue will be resolved with the Department of Labor before the application is submitted to the USCIS.

Fourth Preference

The fourth employment based immigrant category covers “special immigrants.” While it is an employment based category, not all “special immigrants” obtain a green card through employment.

Religious Workers

The most common special immigrant, the religious worker, does, however, apply for permanent residence through employment by a qualified religious organization.

There are three classes of religious workers – ministers, professionals working in a religious vocation, and other workers in religious vocations. There is a limit of 5,000 visas available annually to religious workers, and the applicant must have been working for the religious group for at least two years prior to making the application. This work may be done either in or out of the U.S.

In most cases where the work is done in the U.S., the person has been in the U.S. on an R-1 visa, the nonimmigrant visa given to religious workers.

Qualifying Religious Organization

The religious worker must work for a “bona fide, nonprofit, religious organization” or a “bona fide organization which is affiliated with the religious denomination.”

A bona fide, nonprofit, religious organization is described in USCIS regulations as one that would be tax exempt under Section 501(c)(3) of the Internal Revenue Code (IRC).

The organization does not need to have ever sought tax exempt status, but need only prove to the USCIS that it is eligible for such status. A bona fide organization which is affiliated with a religious denomination is one closely associated with the religious denomination. It must also be eligible for tax exempt status under the Internal Revenue Code.

Religious Denomination

A religious denomination is defined as defined as “a religious group or community of believers having some form of ecclesiastical government, a creed or statement of faith, some form of worship, a formal or informal code of doctrine and discipline, religious services and ceremonies, established places or religious worship, religious congregations, or comparable indication of a bona fide religious denomination.”

Qualifying Religious Occupations

As mentioned above, there are three types of religious workers, ministers, people working in a professional capacity in a religious occupation or vocation, and others working in a religious occupation or vocation.

Ministers are people such as priests, rabbis, or imams authorized by the religion to conduct worship services and perform other functions. It does not include lay persons who participate in services that are not authorized to perform the duties of a minister.

A professional religious position is one for which the minimum requirement is a baccalaureate degree. A religious occupation is one traditionally part of the work of the denomination. It does not include support staff such as clerks or maintenance workers. Typical examples would be missionaries, counselors and liturgical workers.

A religious vocation is a calling to the religious life with a demonstrable commitment to that life such as taking vows. Typical in this category would be monks or nuns.

Filing the Petition

The petition is filed on Form I-360 with the appropriate USCIS Service center. The petition must include evidence that the petitioner is a qualifying religious organization. This could be documentation of the organization’s tax exempt status or evidence that would be required to obtain tax exempt status.

The application must also include a letter from the petitioning organization. This letter must confirm that the alien worked for the religious organization for the two years immediately preceding the filing of the application for permanent residence.

This must be work as a minister, professional in a religious occupation or vocation, or other worker in a religious occupation or vocation. It cannot be volunteer work. Nor can it have been sporadic paid work, it must be full time employment. If the two years were worked for a different organization than the one petitioning, then both organizations must share a common religious doctrine.

If the alien is to work as a minister, the letter must state that that the person is authorized to act as a minister, and must include a detailed list of the ministerial duties. The application must also include evidence that the alien is ordained or authorized to act as a minister, including a description of the ordaining process and, evidence that the alien has underwent that process.

If the alien is to work as a professional, there must be evidence that the alien possesses a U.S. bachelor’s degree or its foreign equivalent.

If the work is in a religious vocation or occupation, the application must include evidence that the alien is qualified for that work. Such evidence could be proof that the alien is a monk or nun, or that the position is traditional within the organization.

If the alien is to work with an affiliated organization, the employer letter must show the affiliation, and the application must include evidence of the organization’s tax exempt status. Finally, the application should include details about how the worker will be paid.

Fifth Preference

The fifth employment based immigrant category covers “immigrant investors.” While it is an employment based category, it is also its own unique category for which qualified aliens can apply for permanent residence.

History

Congress created the EB-5 immigrant investor visa category in the Immigration Act of 1990 in the hopes of attracting foreign capital to the US and creating jobs for American workers in the process.

There are 10,000 visas available in this category each year, 5,000 of which are reserved for people who participate in a program designed to target low employment areas.

The application process and requirements for this category are covered in detail on this website under Investment Based Green Card.

Other Workers

This category covers “unskilled labor,” defined by the Department of Labor as work that takes less than two years training or experience to perform. Because there is an annual limit of 10,000 visas in this subcategory, regardless of how many are available in the entire EB-3 category, there are extreme backlogs in visa numbers for this category. Currently this backlog is about 6 to 10 years.